Should A Creative Use Instagram?

Although Instagram and other social networking sites offer very interesting and compelling features for casual use, there are issues for those creating fine art or photography as work for hire, as well as privacy issues, if the subject displayed in an Instagram post is protected by domestic or international privacy laws. And by agreeing to the site’s Term of Service, one may be giving up rights or breaking a law. That’s not good.

For instance, painter and photographer Richard Prince has gotten some pretty nasty press for a project of his that appeared to cross copyright boundaries. In 2014, Mr. Prince is said to have taken screenshots of Instagram posts, enlarged them and thereafter offered those objects for sale at a New York gallery.  One of those photos was allegedly the work of photographer Donald Graham, who subsequently began a suit against Prince. Prince argued that his work was transformative and derivative and covered under Fair Use, but in July 2017, U.S District Court Judge Sidney Stein denied Prince’s motion to dismiss, allowing the suit to go forward. Prince’s motion argument was based in part on another, similar suit in which he had prevailed, Cariou v. Prince, where Prince had ‘appropriated’ the work of another and modified that work in such a way as to create a new work. In this case, the Judge didn’t see the same circumstances, since Graham’s original image became a principal part of Prince’s ‘new’ work.

It’s not clear who will prevail in this case. There is the question of who owns a work posted on Instagram. Instagram’s Terms of Service, published at this link, says this:

  1. Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the Content that you post on or through the Service, subject to the Service’s Privacy Policy, available here, including but not limited to sections 3 (“Sharing of Your Information”), 4 (“How We Store Your Information”), and 5 (“Your Choices About Your Information”). You can choose who can view your Content and activities, including your photos, as described in the Privacy Policy.

This doesn’t say that another can take your work and claim it as their own, but it does allow Instagram to use the content in any way they choose, subject to some additional terms. Instagram could license Donald Graham’s image as it appeared on their site to Richard Prince. Essentially, by using Instagram, the user is giving Instagram the use of whatever content supplied by the user, again, subject to the user’s additional settings on the site. But if all users can see the work, the above would apply.

For the photographer that produces work for hire with time restrictions on use of the hired work, posting the results of a recent shoot, whether or not the client used the work, gives part of the client’s rights away at a time when the photographer does not have the right to do so. This exposes the photographer (or creator of other work) to an additional legal entanglement.

For copyrighted work that isn’t commissioned work-for-hire,  Instagram, according to their Terms, can license out the photographer’s work without monetary benefit to the photographer because the photographer agreed that they could. Imagine you’re photographer that creates an image that goes viral and then gets underbid by Instragram when he or she tries to make a deal to syndicate the image to publications and news outlets.

Or worse, like in the case of David Slater, the British wildlife photographer, whose “monkey selfie” images wound up being uploaded to Wikipedia. Subsequently, his photographs became the subject of a copyright lawsuit against him by PETA. In that case, PETA sought to enjoin Mr. Slater from publishing his own work and asked the court to award the copyright to the monkey. Ultimately, PETA lost and the copyright wasn’t awarded to the monkey, but the costs of the legal tussle damaged his business, reputation and bank account, he said, to the point where he was “broke”. All parties settled in the end after PETA mounted an appeal to the decision. Sounds like a mess, doesn’t it?

All of the above only relates to copyright as codified in the U.S. What about copyright and trademark law in other parts of the world? Should a photographer or other creative keep an IP attorney on retainer in order to use Instagram? Probably, if the business merits it.

But copyright issues are only part of the problem. Other legal concerns come into view when a photographer uses Facebook or Instagram or any service where a subject work can be viewed in a country where sovereign laws may reflect very different attitudes about what’s okay to photograph and to display ‘publicly’ as on social media. For instance, South Korean law prohibits the photography of women who don’t consent to being photographed, whether or not they’re photographed in a public place. That law considers such photography as criminal sexual assault, punishable by up to five years in prison, a substantial monetary fine and, since mid-2017, chemical castration of the perpetrator.

In short, the road to self-publicity is fraught with considerable hurdles. Although Instagram, Facebook and the like grant access to a wider audience, the risks probably outweigh the benefits. Once a photograph is released into the wilds of the Internet, there’s no telling where it will wind up.